From Prohibition to Gag Order: Flagler Commissioners Told to Shut Up on Tobacco Policy

Last month the Flagler County Commission unanimously passed a policy prohibiting tobacco use, on or off the job, starting with employees hired after Oct. 1. For a local government, it’s the first such draconian prohibition—applying to legal products and to conduct in the privacy of individuals’ lives.

The American Civil Liberties Union of Florida has questioned the policy, which also drew the attention of ABC News last week. County commissioners have each received a handful of emails about the policy—nothing overwhelming, but a few critical responses to the policy.

On Monday, commissioners got word from County Attorney Al Hadeed that they should not respond to the emails.

“As I am sure you noted some of the communications inaccurately describe our policy,” Hadeed wrote the commissioners. “Regardless, they question the legalities of the new policy, the constitutional issues. Since these are legal issues, I suggest you not respond to them but instead forward to our office to address. This includes letters or calls re these issues.”

Elected officials are often told not to discuss legal matters involving a lawsuit they’re facing. But they’re not usually gagged regarding a policy they have just approved. Nor has a lawsuit been filed against the county regarding the tobacco policy. The county’s defensiveness regarding the new policy underscores the shaky legal ground it stands on, and the likelihood of a legal and possibly costly challenge ahead.

“I have a notice from the county attorney not to speak any more about it,” Commission Chairman Nate McLaughlin said Tuesday, when asked if he’d received a lot of emails about the policy. At first he wouldn’t say whether he’d received such emails, or how many, but then explained that he’d received just “two or three” emails. “I would say the majority of what I’ve received is positive towards it, supportive of the policy.” He said he would leave other responses up to the county attorney. “I’m not trying to be difficult about it. When the attorney says Don’t talk about it–.” But he said he stood by the policy as “good fiscal policy.”

Hadeed acknowledged last month that the sort of ban the county approved has not been tested in court. He cited the closest thing to a legal foundation Flagler’s policy has at the moment: a 1995 Florida Supreme Court decision that found it constitutional for a local government to ask a prospective employee whether that individual has been smoke-free for a year—but not to prohibit employees from smoking once they’ve been hired. In other words, the employee was free to start or resume smoking after being hired. The court did not address the issue central to Flagler County’s policy: the blanket ban on smoking after one’s hire date, off the job. That Supreme Court case originated from the city of North Miami, which eventually rescinded the anti-smoking policy because its job pool was shrinking too much. (No one is questioning the county’s right to impose smoking bans for employees on the job, or for anyone on county property.)

The ACLU of Florida isn’t saying whether it will sue. “I’d say this though,” Baylor Johnson, the ACLU of Florida’s media relations manager, said today, “if anybody in Flagler County is finding themselves subject to this policy who feels their rights are being violated and understands the restrictions the constitution puts on government, they should contact us to talk about their option.”

Baylor said Flagler’s policy is a constitutional violation under the 4th Amendment’s prohibition of unreasonable searches. “Most of the time when we talk about a the 4th amendment protection against government searches,” Johnson said, “we’re talking about the government supposedly searching you for evidence of committing a crime. In this case it’s the government searching you for something that’s perfectly legal, which seems to be even more problematic.” The ACLU has successfully challenged government drug-testing before employment in two Florida cities recently, as well as Gov. Rick Scott’s blanket executive order requiring the drug-testing of state employees. A federal appeals court struck down that order in May.

Flagler County was drug-testing prospective employees before it approved the tobacco policy. The change that the county commission made a couple of weeks ago was an unconstitutional change to an already constitutional policy,” Johnson said.

Flagler County’s policy was passed without any public hearings or discussions, and was slipped into the “consent” portion of the county’s agenda at an August meeting—the portion that commissioners usually approve with a wholesale vote without discussing each item under consent. Consent items are generally routine, but they’re also at times used to garner approval for issues a government must approve formally, but attempts to do so quietly. Coffey, who controls what goes on the agenda and how, included his own contract extension through 2016 in the consent agenda last year. One commissioner did pull the tobacco policy item last month for a brief discussion. That triggered easily Googled news reports, which then caught the national media’s attention.

The ABC News article and a reference to the policy in FloridaWatchdog.org led to a few emails to commissioners, and Hadeed’s email Monday. Hadeed could not be reached Tuesday afternoon.

“The commissioners came in, they got some threatening and stuff, negative emails,” Craig Coffey, the county administrator, said Tuesday. “We just had different threats, and different things, not just kind of mean—threatening emails.” Asked to specify the nature of the threats, Coffey could not.

All five county commissioners—who were attending a Rotary lunch Tuesday—were asked if they’d received threatening emails. All five said they had not, and most forwarded the few emails they had received. The emails were critical, and some questioned—as critical emails to politicians often do—the competence of the commissioners or the validity of their policy, but the emails were nowhere near threatening, and several merely raised questions about the science behind the policy, while also questioning its constitutionality.

Chris Ernest wrote all five commissioners: “While I realize you all may think this is smart and the ‘bottom line is better business,’ the residual effects are quite fascistic in nature. This country was founded on individual liberties and slowly eroding them with intrusive laws sets terrible precedents. One day you’ll find you won’t be able to take your kids out to popcorn at a movie the way things are going. It’s a quite slippery slope.”

The five commissioners also got a note from Michael Brown: “If you ban smoking why not ban alcohol?? … what about fat people? Will you next demand to know what county employees eat and how much they exercise? What about people who are trying to quit smoking and are using nicotine gum? Are they also banned from employment? I look forward to the lawsuit (brought by the ACLU) that will squash this ban.”

Crystal Moore wrote Charlie Ericksen that “some foods, such as eggplant, green tomatoes, cauliflower, and potatoes, can make a person test positive for nicotine,” and suggested adding a warning about those foods in the paperwork prospective employers will have to fill out.

An email from Mike Morris to all five commissioners referred to a type of nicotine treatment for ulcerative colitis or Parkinson’s. “I really don’t see how it is legal for you to discriminate based on a legal and proved effective treatment for covered disabilities when the treatment is not illegal and does not impair the ability to do any job,” Morris wrote. “In fact it would be your discrimination of denying treatment that would impair the ability to do a job.”

“How can you even think that testing for nicotine equals proving someone is a smoker?” Karen Soules wrore Commissioner Charlie Ericksen. “What about nicoderm patches? Inhalers? E-cigarettes? Snus? Some of these products are what KEEPS former smokers from BEING smokers again! And what makes you think it is anywhere near constitutional to discriminate against anyone who has not broken any legal law? What kind of politician are you? You sure aren’t one who belongs in any U.S. or state office of any kind, local or otherwise.” She went on to call the policy a violation of constitutional rights and predicted that it would “cause county lawyers to get paid the big bucks to defend all the employees who will sue you.”

Commissioners were interviewed briefly as they all attended a Rotary lunch Tuesday. Commissioner Frank Meeker said he did not read Hadeed’s note as a gag order since he had spoken, as a commissioner, through the policy. “We addressed the policy by putting it in effect,” Meeker said. Beyond that, he said, the county attorney was preparing a response to those raising legal issues with the policy.

“I’m not a lawyer, I don’t look at it as deeply and rely on our legal department to answer those questions,” Meeker said. “The presumption, if it comes before the commission, is that staff has looked at it and feels that it’s legally sound.”

The legal soundness of the policy is certainly in question. But last month the county commission and the administration were taking credit for the policy. The distancing that may now take place could signal a shifting of blame to the legal department, as a scapegoat for a policy commissioners perhaps too hurriedly embraced. When they approved the policy unanimously, none raised questions about its legal soundness.

“Sometimes you have to protect people if they want it or not,” Commissioner George Hanns said Tuesday, “and we’ve all had family members who’ve lost their lives because of smoking, including my brother, who smoked like a steam engine.”

Some companies are charging higher insurance premiums for smokers and require a blood test to prove that employees and family members do not smoke. I think that’s fair but excluding anyone that uses nicotine from employment consideration is wrong.

Why not just test people for legal use of alcohol, tobacco and put scales and BMI testing machines in all the realtors offices. That way before they can even rent/buy/build a house, they would have to pass these tests. Maybe Flagler should go a step further and even ban purchasing cigs and alcohol too. Oh wait, lets not forget about getting rid of fast food joints too and ban all you can eat buffets. Of course this is posted with heavy sarcasm, but the possibilities are endless. No more legal drinking, no more legal smoking and no more legal fast food or all you can eat restaurants.

I have no problem with charging a higher premium for insurance, just with denying employment.

I don’t smoke so I could care less about this policy but I see one glaring issue. What levels of nicotine will be considered a violation? If I go to a cigar bar for a beer with some friends and inhale some second hand smoke will I get fired? This policy is going to be a problem legally.

Unless they’re willing to ban chewing tobacco, alcoholic beverages and refined sugar, Mr. Hadeed and the Commissioners are discriminating against job seekers who legally smoke cigarettes. Oh, and by the way, has Commissioner Hanns given up smoking, yet?

I’m starting my own business and I’m hiring only SMOKERS , ALCOHOLICS , DRUG ADDICTS. I’m calling it ” SAD “. We make cyanide capsules for future Astronauts going on a one-way trip to Mars for colonization. Gee, I wonder what my company health plan will cost me when Obama Care kicks in ?

As usual Mr. Coffey and his Commissioners are on very thin ice. Mr. Hadeed must know this ban would never be upheld by the Supreme Court, state or federal. It’s about the fourth Amendment. I wish we could ban stupidity.

What does smoking have to do with anything with a job. I can see if they are smoking while they are suppose to be working but off the clock too. May as well put a tracking anklet on and cameras in our homes.

It is not, and never should be, the government’s right to “protect people if they want it or not.” Protecting people from other’s behavior is at times warranted, but it is not your job to protect me from myself.

They take away rights of legal acts and now they can’t even talk about it to the people that they represent. WOW.
Focus on what you have been elected to do and not worry about taking legal rights away from people.
Just like other politicians, they all talk bad about legal smoking but they are happy to take all the tax revenue that it creates.
How about alcohol? Can staff drink at home or at a party. Just as bad if abused.

Testing potential employees for smoking outside their working hours is as much a violation of privacy as putting a camera in their kitchen to make sure they eat right, n their bedroom to catch them having unprotected sex with different partners. or in their living room to limit their ”couch potato” time. As per the Universal Declaration of Human Rights:
Article 23.
(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

And especially if people are using a legal product on their own time. It’s about time the ACLU stepped in with regards to the use of tobacco, a perfectly legal product.

Chris Earnest wrote, “One day you’ll find you won’t be able to take your kids out to popcorn at a movie the way things are going. ”

Chris might have thought he was kidding. I wrote about this in an upcoming book:

===

“It’s not just sunshine and martinis, though; consider the deadly
popcorn fumes! Research now indicates that popcorn factory workers
who are constantly exposed to that delicious buttery aroma can lose up
to 80% of their lung capacity to bronchiolitis obliterans, a condition
that literally obliterates the bronchioles – the lungs’ tiniest airways.
If “firsthand exposure” among popcorn workers is that deadly,
what about the “secondhand exposure” you and your children get at the
movies or while munching microwaved popcorn on the
couch?* Picture TV ads showing babies in the womb being force-fed
butter-flavored popcorn while their tiny computer-animated lungs
slowly wither and die. Picture parents being denied custody of their
children or losing their jobs because they are “popcorn eaters.”

and

When this was first written in the early 2000s, such “secondhand popcorn exposure”
was pure fantasy, but in 2007, Reuters reported the first case of bronchiolitis obliterans in
a heavy popcorn consumer! (“FDA to Probe Popcorn Link in Man’s Lung Disease” by
Julie Steenhuysen, Reuters, September 9, 2007)

If it’s not against the law how can 5 commissioners say you cannot do it, are they now law makers; government gets to involved in citizens lives. We need them to fix budgetary problems and find solutions to government problems, not create more by incurring law suites that will arise from this. People of Flagler show your disapproval of our current commissioners by voting the next few who are up for election right out the door.

Disallowing employees to smoke in the building, near entrances and exits is fine and should be that way. People who do not smoke, people with respitory problems and kids should not be forced into inhaling second hand smoke or to have the smell penetrate their clothing and hair from being around it.

If people want to smoke in their homes, or cars, that is their business. However, a smoker does pay a higher insurance premium so if they want to smoke then why can’t the employer just deduct a higher amount from the smoker’s pay check to cover the extra cost to insure him or her?

It’s not so much about not smokling .. I’d like to know how the heck can you pass a test when you’re around people that do smoke?
Say you don’t smoke, HURRAY! BUT your husband does..so you’re inhaling smoke and then go for an interview, do a nicotine test and BANG…you lose…..How fair is that?

I CAN see not smoking inside or even on the premises.. BUT how can you have a “smoke free” body when you’re exposed to it at home or a night out even??

You can add a LOT to the list of can’t do. BUT there has to be a line.. Don’t we live in a democracy?? Or is it a dictatorship?

Dauh, despite the craziness you hear from the antismoking nuts, your likely exposure to nicotine (and the resulting blood levels) is likely to be 1/100th to 1/1,000th that of a regular smoker. Any decent test would reveal that.

I dont smoke but i am around people that smoke. What if you live with someone that smokes? So i cant get a job because i live with someone that smokes something that is legal. Unemployment rate is already too high abd so is Welfare. Say theres a lazy employee who doesnt smoke and a hard working employee who is just around people that smoke. The lazy one gets the job but the hard working one doesnt get one?

One particularly vile individual, Karl Astel — upstanding president of Jena University, poisonous anti-Semite, euthanasia fanatic, SS officer, war criminal and tobacco-free Germany enthusiast — liked to walk up to smokers and tear cigarettes from their unsuspecting mouths. (He committed suicide when the war ended, more through disappointment than fear of hanging.) It comes as little surprise to discover that the phrase “passive smoking” (Passivrauchen) was coined not by contemporary American admen, but by Fritz Lickint, the author of the magisterial 1100-page Tabak und Organismus (“Tobacco and the Organism”), which was produced in collaboration with the German AntiTobacco League.

Using lung transplants from heavy smokers may sound like a cruel joke, but a new study finds that organs taken from people who puffed a pack a day for more than 20 years are likely safe.

What’s more, the analysis of lung transplant data from the U.S. between 2005 and 2011 confirms what transplant experts say they already know: For some patients on a crowded organ waiting list, lungs from smokers are better than none.

“I think people are grateful just to have a shot at getting lungs,” said Dr. Sharven Taghavi, a cardiovascular surgical resident at Temple University Hospital in Philadelphia, who led the new study………………………

Ive done the math here and this is how it works out with second ahnd smoke and people inhaling it!

The 16 cities study conducted by the U.S. DEPT OF ENERGY and later by Oakridge National laboratories discovered:

Cigarette smoke, bartenders annual exposure to smoke rises, at most, to the equivalent of 6 cigarettes/year.

146,000 CIGARETTES SMOKED IN 20 YEARS AT 1 PACK A DAY.

A bartender would have to work in second hand smoke for 2433 years to get an equivalent dose.

Then the average non-smoker in a ventilated restaurant for an hour would have to go back and forth each day for 119,000 years to get an equivalent 20 years of smoking a pack a day! Pretty well impossible ehh!

I’m not a smoker, never have been, and will not allow people to smoke in my home. I avoid if at all possible places that aren’t smoke-free. I find cigarette smoke, even 2nd or 3rd hand, to be very irritating to my respiratory system due to a medical condition.

That said, I disagree strongly with this policy. It’s an infringement of employee rights for an employer to try to govern private behavior of an employee. That infringement is even more serious when the employer is a government entity. There’s also possible issues of false positives as pointed out by other commenters, from 2nd hand exposure.

The county is also significantly shrinking its possible talent pool to hire from by limiting themselves to non-smokers. Instead of getting the best person for the job, from now on, we’ll be getting “the best person who doesn’t smoke and is willing to put up with a massive level of intrusion in their personal life by their employer.” Yeah, that sounds like a great way to fill a job opening.

But most importantly – there is NO FREAKING WAY this is going to just be put into effect without a major (and expensive) court challenge. As a taxpayer, I strongly object to my tax dollars being wasted on paying the inevitable massive legal bills that this will entail, especially given that it will almost certainly be overturned eventually as unconstitutional. Way to piss money down the drain, guys.

The County Administrator and Commission want to run the County Government like a private Corporation.
They function on the power given to them by the people, but want to deny Constitutional rights to the people that give them power. This disregard for the 4th Amendment, could eventually get the county in hot water. Smoking Rules and designated areas are one thing and of course higher insurance rates but denying people a private life is unconstitutional!

Flagler County is the laughing stock of the entire nation.
Where’s the Tea Party outrage at this expansion of government power?
Why hasn’t the ACLU threatened Flagler County with a lawsuit.
Smoking is not illegal!
Unhealthy, yes. Illegal, no.

I think that that this board should work on getting companys to come to palm coast and set up shop so we can have jobs for our citizens of palm coast . They really need to start thing of there next job because come election time i am confident that this city of wonderful people will make a BIG change in goverment here !!!!!!